1847. SMITH V. HOPPER. Volume IX. quisite should be applied to the prosecution or defence of any action which might arise out of any proceedings the Highway Board might consider necessary to adopt for restoring to the public its ancient right of way past Thornhill, and having instructed the Highway Board to direct their surveyor forthwith to open out this road to the public: Resolved, That it is the duty of this Board to obey the instructions of their constituents (the ratepayers), who contribute the necessary funds. It is therefore ordered that the assistant surveyor of the Board be, and he is hereby, directed to open out the road through Thornhill past Broad Meadows to the public: Resolved, That the clerk communicate the above resolution to Mrs. Reed, and request to be placed in communication with her solicitor on the subject. Unless a suitable arrangement for opening the road forthwith, It is ordered, That the surveyor open the same on Wednesday next, and remove all obstructions there may be to the enjoyment of the road to the public." In pursuance of this order, no arrangement having been made with Mrs. Reed, the defendant Cor broke down a gate, for the purpose of opening the alleged road, and passed over the ground in question, being in the occupation of the plaintiff; which were the trespasses complained of. The defendants did not prove, to the satisfaction of the jury, that there was a public highway but it was insisted, on their behalf, that they were entitled to twenty one days' notice of action, under stat. 5 & 6 W. 4. c. 50. s. 109. (a), which had not been (a) Which enacts: "That no action or suit shall be commenced against any person for any thing done in pursuance of or under the authority of this act until twenty one days' notice has been given thereof in writing to the justice, surveyor, or person against whom such action is 1847. given. The learned Judge reserved leave to move to Queen's Bench. enter a verdict for the defendants on this point: and a verdict was taken for the plaintiff on both issues. In Michaelmas Term, 1845, Watson obtained a rule nisi for entering a verdict for the defendants on the first issue. In last term (a), Knowles, F. Robinson and J. C. Heath shewed cause. The defendants were not within the protection of sect. 109 of stat. 5 & 6 W. 4. c. 50., the trespasses not being "any thing done in pursuance of or under the authority of this act." It is not enough that a party should suppose himself entitled to do the thing under the act: there must be, besides bona fides, a reasonable ground for the supposition, though it is not necessary that the supposition should be legally true. Here no such reasonable ground could exist. The board is formed under sect. 18, which gives it the powers of the vestry and the surveyor. The sections relied upon, as conferring the powers to do the act now in question, are 65, 67 and 72. Now sect. 65 authorizes only the SMITH V. HOPPER. intended to be brought, nor after sufficient satisfaction or tender of satisfaction has been made to the party aggrieved, nor after three calendar months next after the fact committed for which such action or suit shall be so brought;” “and the defendant in such action or suit may plead the general issue, and give this act and every special matter in evidence at any trial which shall be had thereupon; and if the matter or thing shall appear to have been done under or by virtue of this act, or if it shall appear that such action or suit was brought before twenty one days' notice thereof given as aforesaid, or that sufficient satisfaction was made or tendered as aforesaid, or if any action or suit shall not be commenced within the time before limited," "then the jury shall find a verdict for the defendant therein." (a) December 4th, 1846. ridge and Wightman Js. Before Lord Denman C. J., Patteson, Cole 1847. SMITH V. HOPPER. 66 Volume IX. pruning &c. of hedges and trees which prejudice the highway, and that under the order of justices. Sect. 67 authorizes cleansing ditches, laying bridges, and similar works. Sect. 72 imposes penalties for obstructing the passage of a footway or highway, and for other nuisances thereto. Could it be supposed that any of these sections warranted a surveyor in breaking down a gate in assertion of a disputed highway, without order of a justice? The surveyor's duty, under sect. 6, is to repair and keep in repair the several highways.” [Patteson J. referred to sect. 69.]. That relates only to carriageways and cartways. If a highway be out of repair, a mode of proceeding is given by the 94th and following sections, which the defendants have not adopted. Thus there is, not only no ground for inferring a reasonable belief, but strong proof to the contrary. The question whether the facts proved were reasonable ground for the belief is for the Court, not for a jury; Panton v. Williams (a). [Watson, for the defendants. That will be admitted.] The authorities appear at first sight not quite consistent: but the decisions may be divided into two classes; comprehending, first, those where a bonâ fide belief has been held enough; secondly, those where a reasonable belief has been held to be requisite. The decisions of the former class may, for the most part, be explained; and those of the second class present a view which is always consistent with good sense. A bonâ fide belief is simply a belief: a malâ fide belief could not exist. A large class of cases, where magistrates or constables have received the protection of stat. 24 G. 2. c. 44. ss. 1, 6, 8. (or other (a) 2 Q. B. 169. 1847. SMITH v. HOFPER. statutes conferring protection on parties filling a specified Queen's Bench. office), because they acted on a bonâ fide belief, rest on a distinct ground. Such are Briggs v. Evelyn (a), Weller v. Toke (b), Theobald v. Crichmore (c), Wedge v. Berkeley (d), Ballinger v. Ferris (e), Prestidge v. Woodman (g). There the character gives the jurisdiction; and it is enough that there should be no malice. The case of an excise officer is similar; Greenway v. Hurd (h). The principle by which these cases are distinguished is illustrated by Hughes v. Buckland (i). They would be applicable here if the protection of sect. 109 of stat. 5 & 6 W. 4. c. 50. had been given specifically to parties filling a particular character, as surveyors, or members of the Board but it is given generally. In this class of cases, the bonâ fide belief is no protection unless the party fill the office in fact. Again, bonâ fide belief is all that need be proved where the supposed authority is given by a statute difficult to construe, which has not been technically adhered to; there it cannot be said that the belief is unreasonable. To this class belong Pratt v. Hillman (k) and Wells v. Ody (1), cases under the Building Act, 14 G. 3. c. 78.; Waterhouse v. Keen (m), a case of toll under a Turnpike Act; Beechey v. Sides (n) and Reed v. Cowmeadow (o), under the Malicious Mischief Act, 7 & 8. G. 4. c. 30.; Jones v. Gooday (p), under (a) 2 H. Bl. 114. (c) 1 B. & Ald. 227. (b) 9 East, 364. (e) 1 M. & W. 628.; S. C. Tyrwh. & G. 920. (g) 1 B. & C. 12. (h) 4 T. R. 553. (i) 15 M. & W. 346. See Braham v. Watkins, 16 M. § W. 77. 1847. SMITH HOPPER. Volume IX. a Paving Act. In other cases, parties have been held entitled to the protection where, besides the actual belief, there was a fair colour for it; as in Rudd v. Scott (a). On the other hand, where no such colour has appeared, the belief has been held insufficient; Cook v. Leonard (b), Cann v. Clipperton (c), Lidster v. Borrow (d), Hopkins v. Crowe (e), Bush v. Green (g), The Company of Proprietors of the Witham Navigation v. Padley (h), Eliot v. Allen (i), Bartholomew v. Carter (k), Shatwell v. Hall (1). Carpue v. London and Brighton Railway Company (m) is also an authority on the question what shall be deemed a thing done in pursuance of a statute. If, in the present case, a bonâ fide belief would cause the thing to have been done "under or by virtue of this act," it would, under sect. 109, entitle the defendants to a verdict, with or without notice. [Coleridge J. Surely there are many cases in which bona fides has been held to satisfy such a clause as this, though the clause also directed a verdict for the defendant where the thing should be done under the authority of the act.] That was so in some of the cases, as in Pratt v. Hillman (n) and Waterhouse v. Keen (o); in many others there was no such direction; and it does not appear that this consequence has been pointed out in argument. [Coleridge J. It was much insisted upon in Stamp v. Sweetland (p): but the decision there was on 1 |